Muhammad Ghazanfar Khan, J.--Through this writ petition, the petitioner has assailed the order dated 12/6/2014 passed - by learned Additional Sessions Judge-IV D.I.Khan, vide which his complaint under Sections 3/4 of the Illegal Dispossession Act, 2005 against the respondents was dismissed on the ground of maintainability alone.
2. Brief facts of the case are that the petitioner prior to the present lis separated his share out of landed property commonly owned by all the co-sharers and an area of 94 kanals 14 marlas fell to his share comprising of Khasra Nos. 1706, 1709, 1989 and 1990 situated in the revenue estate Gandi Aashiq, Dera Ismail Khan. Consequently upon the partition proceedings, the petitioner applied to the Court for physical possession of the land, so the Court issued warrant of possession and directed the Girdawar Circle to handover the possession of the landed property to the petitioner.
The Girdawar Circle after informing all the concerned and SHO of relevant police station for help went on the spot and handed over the possession of the suit land to the petitioner by asking him to plough the suit land with a tractor and after that submitted his report.
3. The petitioner allegedly went on his landed property to cultivate the same but Respondents No, 1 to 16 came duly armed and dispossessed him forcibly and illegally. So the petitioner was constrained to file a complaint under Sections 3/4 of Illegal Dispossession Act.
4. The trial Court after recording the statement of petitioner sent the complaint for inquiry to SHO/IO concerned, who sought report from Patwari Halga and after receipt of the report submitted his final report before the trial Court. The trial Court after hearing the counsels for the parties dismissed the complaint vide order dated 12-62014 on the basis of non-maintainability, hence the present writ petition.
4. We have heard learned counsel for the petitioner and carefully perused the record.
5. The legal proposition before us is that whether every dispossession comes within the ambit of "Illegal Dispossession Act, 2005". To determine this factor, let we refer to pre-amble of the Act: "Whereas it is expedient to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession therefrom by the property grabbers;
6. Bare reading of the pre-amble shows that to bring a dispossession under the umbrella of above law, three factors must coexist, i,e, (i) the dispossession must be forceful, (ii) the dispossession must be illegal and (iii) the dispossession must be by a land grabber.
7. Another legal point which need determination in this case is that the person dispossessed must be the owner or the occupier. Both these terminologies are defined in Section 2(c) and (d). Sub- section (2)(c) defines "Occupier". An 'occupier' means the person who is in lawful possession of a property. The word 'owner' as defined in subsection of means the person already owns the property at the time of his dispossession, otherwise then through process of law.
8. The perusal of above provision of law clearly indicates that illegal dispossession of both the occupier and the owner, without the due process of law, is an offence and the cognizance whereof can be taken by Sessions Judge in a complaint under Section 4 of the Act. Provision of Section 4 of the Act can be invoked if any violation of Section 3 thereof has been done. For more clarity, Section 3 of the Act ibid is reproduced as under:
3. Prevention of Illegal possession of property etc.--(1) No one shall enter into or upon any property to dispossess, grab, control or. Occupy it without having any lawful authority to do so with the intention to dispossess, grab, control, or occupy the property from owner or occupier of such property".
9. In the instant case, the learned trial Court after recording statement of the complainant under Section 200 Cr.PC forwarded it for inquiry to SHO concerned who entrusted the same to ASI. The ASI applied to Tehsildar to obtain report of patwari halqa which report is worth perusal, which reads at the end that the respondents are recorded as tenants in the suit property. This report is augmented by revenue papers in which the respondents are recorded as tenants-atwill. This fact is further supported by the report of SHO. Now the question whether the respondents are illegal occupiers, land grabbers and have dispossessed the petitioner illegally, forcibly and without lawful authority has been negated by the record, rather it is proved that the respondents are "occupiers" as defined in the Act itself, so the trial Court has rightly dismissed the complaint as it was not fortified by the law nor by the facts and evidence on record.
10. As a sequal to our above discussion, we find no merit in the instant writ petition, which is dismissed in limine. However, the petitioner is at liberty to proceed for ejectment of the respondents - (tenants) in a competent Court of law, if so advised